The holiday season often presents challenges for public entities in upholding the First Amendment’s protection of religious expression as well as its prohibition against government-sponsored religious endorsement and promotion. The following is a brief reminder of guidelines for public entities, including schools, cities and counties, to follow in this area of the law.

Holiday Displays: Christmas Trees, Manger Scenes and Menorahs. Holiday displays on public property are permissible when they are predominantly secular. In deciding that the display of a menorah next to a Christmas tree in front of a government building was permissible, the U.S. Supreme Court found that the combined display did not have the effect of endorsing either faith. (County of Allegheny v. American Civil Liberties Union (1989) 492 U.S. 573.) The court also reasoned that both Christmas and Chanukah are part of the same winter holiday season, “which has attained a secular status in our society.” However, the court in Allegheny further ruled that a manger scene standing alone was not permissible.

Similarly, in Lynch v. Donnelly (1984) 465 U.S. 668, the U.S. Supreme Court found that including a manger scene in a display with other holiday symbols, such as a Santa Claus house, reindeer pulling Santa’s sleigh, candy canes, Christmas trees, carolers, and cut-out figures of animals and a clown could be viewed as a traditional holiday symbol and not an attempt to promote religion.

Accordingly, public entities may display predominantly secular holiday symbols and scenes. For instance, displays featuring holiday symbols such as a Christmas tree and a menorah would be within the law because Christmas trees have become secular symbols and menorahs have both secular and religious meanings. Similarly, a display containing a Christmas tree alone is permissible, as it is viewed as a purely secular holiday symbol.

This said, schools are not prohibited from using or referring to religious art, literature, music, dance, theater, visual arts, or other subjects having a religious significance that are incidental to a course of study, as long as the use of religious references does not constitute instruction in religious principles or aid to any religious sect, church, creed or sectarian purpose. (Educ. Code § 51511.) In other words, “Although direct instruction in religious principles may not be given in the public schools, it does not follow that every reference to anything religious is prohibited.” (25 Ops.Cal.Atty.Gen. 316 (1955).)

Winter Concerts. Use of religious music in schools is permissible if it serves an educational, as opposed to a religious, purpose. (Educ. Code § 51511.) School districts must avoid the appearance of favoring a particular religious viewpoint, favoring a religious viewpoint over a nonreligious viewpoint, or promoting or inhibiting religious beliefs. School districts should apply viewpoint neutral standards in determining what songs or other performing arts to present at winter concerts. Under these legal principles, courts have found lawful school districts’ use of a spectrum of works celebrating the holiday season in winter concerts, ranging in different secular, cultural and religious origins, which are chosen through viewpoint neutral criteria. In one case,Sechler v. State College Area School District (M.D. Pa. 2000) 121 F. Supp.2d 439, the federal district court found that a winter holiday celebration that included Christmas, Kwanzaa and Chanukah songs was within the law because it conveyed an “inclusive message of celebration.”

If religious works are used in winter concerts or other holiday activities, such school-sponsored activities should focus on, in addition to secular themes, more than one religious, cultural or ethnic holiday tradition. Additionally, students must be given the option of choosing not to participate in activities that have a religious origin without any fear of suffering embarrassment, peer pressure, or negative consequences.

For further analysis of the proper use of viewpoint neutral standards during the holiday season, permitted holiday practices, and other specific instances of religious expression that come with this time of year, please feel free to contact one of our eight offices located statewide. You can also visit our website, follow us on Facebook, or download our Client News Brief App.

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

California courts at all levels have been faced with an increasing myriad of lawsuits and appeals relating to the California Environmental Quality Act (CEQA). Two courts of appeal recently considered issues relating to the adequacy of environmental impact reports (EIRs), with mixed results. CEQA requires an EIR to be prepared in certain circumstances when an agency finds that a non-exempt project may have a significant effect on the environment. When required, the EIR must identify and analyze potential significant impacts, and must propose and describe mitigation measures to minimize those impacts. Also, an EIR must describe a reasonable range of project alternatives.

One of the decisions reaffirmed several principles which are helpful to public agencies conducting environmental review of their projects. In particular, many public agencies have experienced substantial evidentiary submissions challenging a project at the eleventh hour, when an agency is on the brink of making a determination whether to approve the project and/or certify an EIR. This case may provide a basis to limit the impact of these late submissions through a policy or ordinance establishing time limits for submission of evidence. Also, the case lends support to the fact that, in some circumstances, an EIR may be adequate even if the only alternative to the project that is analyzed is the “no project” alternative.

In Mount Shasta Bioregional Ecology Center v. County of Siskiyou (2012) __ Cal.App.4th ___ (2012 WL 4378593), the Third District Court of Appeal considered an EIR prepared in connection with a project to expand an existing manufacturing facility. Project opponents challenged the EIR on multiple grounds, and the court’s opinion includes a detailed analysis of issues relating to air quality, noise, and water quality impacts. In each area, the court found in favor of the public agency, holding that the EIR was adequate. Although somewhat dense with technical detail, the case is generally deferential to public agencies and their environmental analysis.

In the Mount Shasta case, the project opponents based certain of their arguments on a letter submitted to the Board of Supervisors the day before an appeal hearing regarding the project. This violated a County resolution that required all documentary evidence to be submitted at least five days before the hearing. The opponents argued that comments submitted after the close of the comment period for the EIR, but before the approval of the project, are timely. The court rejected this argument based on the County resolution. In light of this decision, it may be prudent for public agencies to adopt ordinances or board policies requiring submission of evidence by a certain date in advance of CEQA hearings. Although this may not prevent late submissions from becoming part of the administrative record, it may provide support for the position that an agency is not required to provide a response to or possibly even consider those submissions. Since this case was decided on the specific facts before the court, based on this decision, public agencies may wish to consult with legal counsel to review their ordinances and policies and determine how they might be updated to benefit the agency.

Also, the project opponents in this case contended that the EIR was inadequate because the only alternative it considered in depth was the “no project” alternative. The court emphasized that there is no rule specifying a particular number of alternatives that must be included. Further, CEQA only requires the analysis of feasible alternatives, and the other alternatives considered by the agency during a prior scoping phase were determined not to
be potentially feasible. Therefore, the court held that, absent a showing that the EIR failed to include a particular alternative that was potentially feasible or that including only the no project alternative did not amount to a reasonable range of alternatives, the alternatives analyzed in the EIR were adequate.

The EIR at issue in the second case did not fare as well. The Fourth District Court of Appeal found an EIR for a development project inadequate because it improperly deferred mitigation for the project’s potential significant impacts on an endangered species of butterfly. (Preserve Wild Santee v. City of Santee (2012) __ Cal.App.4th __ (2012 WL 5077156).) CEQA prohibits an EIR from deferring the formulation of mitigation measures to a future time. However, for circumstances where mitigation of impacts is known to be feasible, but practical considerations prohibit devising those measures early in the planning process, the agency can commit itself to devising measures later that will satisfy specific performance criteria articulated at the time of project approval. The court found that the EIR did not describe any measures for active management of the butterfly within the habitat, including any performance standards or other guidelines. The City’s anticipated plan for management contained nonspecific actions, leaving the timing and other specifics subject to the discretion of the habitat preserve manager on prevailing environmental conditions. Further, the EIR did not indicate that it was in any way impractical or infeasible to specify standards or guidelines. Therefore, the court found that the City violated CEQA. Based on this holding, agencies are reminded that an EIR is required at a minimum to set forth performance standards for future mitigation measures, unless there are specific reasons why it is infeasible to do so, in which case the agency should specifically state the reasons for the infeasibility.

These are just two of the many CEQA decisions which have been published this year, along with many challenges in the superior courts which have not reached the appellate level. Due to the complicated and evolving state of this law, and the fact that it is a highly litigious area, public agencies are encouraged to consult with their legal counsel throughout the CEQA process. For assistance in preparing policies or ordinances like the one mentioned in the Mount Shastacase, please feel free to contact Lozano Smith. School districts may also consult Lozano Smith’s “CEQA Checklist for School Districts”, which can be obtained here.

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

Commonly referred to as Prop. 39, Education Code section 47614 requires that school districts provide facilities to charter schools. Charter schools must request facilities for the 2013-2014 school year, in writing, by Thursday, November1, 2012. Even proposed charter schools can request facilities if they submit their request by November 1, 2012 and have their charter approved by March 15, 2013.

Once a school district receives a facilities request from a charter school, the following deadlines are triggered:

December 1 – Deadline for a school district to express, in writing, any objections to the charter school’s projected average daily attendance (ADA).If this deadline passes without objection by the district, the district will likely be required to base its facilities offer on the charter school’s in-district ADA projections.

January 2 – Deadline for the charter school to respond to any objections raised by the school district regarding ADA projections.

February 1 – Deadline for the school district to provide a preliminary offer of facilities to the charter school, along with detailed information about the offer and a draft facilities use agreement.

March 1 – Deadline for the charter school to respond to the preliminary offer.

April 1 – Deadline for a final offer of facilities by the school district.

May 1 – Deadline for acceptance of offer of facilities by charter school.

Given these tight timelines, it is critical that a facilities request be reviewed shortly after receipt to determine the reasonableness of the charter school’s ADA projections, and, if necessary, to consult legal counsel on this issue.

In the past year, two court decisions have highlighted the challenges school districts face in meeting their Prop. 39 obligations. Both cases illustrate the tension courts perceive in ensuring that charter school students and school district are housed in equivalent facilities. First, a court of appeal has recently ruled, in Los Angeles International Charter High School v. Los Angeles Unified School District (October 11, 2012) __Cal.App. __ (2012 WL 4830249), that Prop. 39 does not mandate that school districts place charter schools in the exact location requested by the charter school. However, districts must make reasonable efforts to locate charter schools near their requested locations.

In this case, the charter school requested space at a specific campus. The District offered facilities at a site other than the site requested by the charter school, because its campus size and condition was equivalent or better than the conditions at the other comparison schools. The offered site had grade-alike classrooms available in a building that was separate from the main part of campus, but with a wide array of shared-use facilities. It also offered the best ratio of classrooms to students, and specialized and non-teaching space, such as an office, library, athletic fields and a cafeteria. The site had undergone significant modernization and renovation, which surpassed renovations at the other comparison schools. The court agreed with the District’s conclusion that all the other comparison schools were operating at or near capacity, and that only the offered site met all of the Prop. 39 factors, including proximity to the charter school’s preferred site.

The District also provided convincing evidence of the harmful impact that carving out space at the charter school’s preferred site would have on the District school’s current student population and staff. In order to house 157 charter school students at that site, the District would have had to redistribute eight classrooms serving 40 classes, displacing 240 students and eight teachers from their existing classrooms, and the timing was such that this would have taken place in the middle of the school year. The court agreed that this transition would have interrupted the instructional program and ongoing education of the District’s students.

Reasoning that Prop. 39 requires that facilities be shared fairly, and that charter school students should not be treated more favorably, the court concluded that the District had appropriately balanced the needs of the charter school’s in-district students with the needs of the students in District-run schools. This significant conclusion may help districts evaluate how to balance Prop. 39 requests against the needs of their own students.

This decision is very recent. We will keep you apprised if the matter is appealed to California’s Supreme Court.

In another well-publicized decision issued last fall, the appellate court in Bullis Charter School v. Los Altos School District., (2011) 200 Cal.App.4th 1022, found, among other errors, that a school district had inaccurately used comparison school data and had also incorrectly compared the size of the facilities offered against the size of the comparison sites’ facilities. This decision put school districts on notice that they must make careful efforts to measure accurately the classroom and non-classroom space of its comparison schools and accurately portray the facilities offered to its charter schools. See Client News Brief Number 70 dated November 2011, for a more detailed discussion of theBullis Charter School case.

These two cases illustrate the complexity of responding to Prop. 39 requests, the need for school districts to provide rationale and accuracy when responding to Prop. 39 requests, as well as the escalating tensions between school districts and charter schools over securing adequate facilities. Prop. 39 litigation will generally be decided on each case’s very specific facts. The court will want to see that the school district documented a serious and objective analysis prior to making its offer of facilities.

For assistance with processing Prop. 39 facilities requests or with any charter school matter, please feel free to contact one of our eight offices located statewide. You can also visit our website, follow us on Facebook, or download our Client News Brief App.

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

We often receive questions about the conduct of school board meetings, including public requests to participate in the meeting, add items to the agenda, and obtain board meeting documents. While the Brown Act requires that board meetings generally must be held in public, with the exception of certain closed sessions, the meetings are still meetings of board held in front of the public, and not a meeting of the public that merely includes the board. This distinction is critical for the effective conduct of district business. This News Brief reviews the sometimes delicate balance between the public’s right to attend and participate in board meetings and the need to accomplish important school district business.

Board Control of the Agenda
Boards retain control over their meeting’s agenda, which includes placing items on the agenda. Members of the public must be allowed “to place matters directly related to school district business on the agenda of school district governing board meetings.” (Ed. Code § 35145.5.) The Brown Act does not, however, require public comment before the board’s decision whether and how to place an item on the agenda. The court in Coalition of Labor, Agriculture & Business v. County of Santa Barbara Bd. of Supervisors (2005) 129 Cal.App.4th 205 reiterated that a board itself has the task of setting its agenda. The board controls when and how an item is placed on the agenda. A member of the public generally cannot demand that an item be placed on the agenda on a certain date or in a particular manner. The board decides the order of the agenda and also determines whether the item should be an action, discussion, or consent item. The board is only required to add the issue to the agenda within a reasonable time period.

An agenda item proposed by a member of the public must directly be related to school district matters to be added to the agenda. The recent California court of appeal decision in Mooney v. Garcia (2012) 207 Cal.App.4th 229 reaffirms the board’s discretion in determining whether a proposed agenda item is related to school district matters under Education Code section 35145.5. In Mooney, a student club hosted “Rainbow Day” to promote anti-bullying awareness for gay, lesbian, bisexual, and transgendered students. A parent of a student requested that the board place on its agenda an item changing “Rainbow Day” to an all inclusive anti-bullying day. The board denied the parent’s request because the item was not within the board’s subject matter jurisdiction. The board argued that it did “not direct specific activities at individual schools.” The court of appeal agreed with the board and reaffirmed that it is within the board’s discretion to determine whether a proposed item is “directly related to school district business.” The court further concluded that the board had not abused its discretion in determining that the proposed item was not sufficiently related to school district business because the proposed item involved only one student club’s isolated activity at one school. However, the court left open the question if this conclusion would have been the same had the parent requested an item on district policies, such as a request to enact a district-wide anti-bullying day.

The foregoing considerations are generally applicable to regular meetings, not special meetings. In Frazer v. Dixon Unified School District (1993) 18 Cal.App.4th 781, the court held that members of the public cannot insist that a special meeting be held or that a special meeting address specific agenda items. Thus, requests by members of the public to add an agenda item to a special meeting need not be granted.

Additionally, the board can add to the agenda during public meetings under certain circumstances. In response to public comments, the board or any member of the board may request to have a matter be placed on a future agenda. (Gov. Code § 54954.2.)

Open Session Meeting Documents and Public Records
Board agenda materials must be made available to the public. Writings for open meeting discussion that are distributed by any person to all or a majority of the board are public records. As public records, these writings must be made available for inspection and copying upon request. Under a legislative amendment in 2008, writings relating to an agenda item for an open session meeting that are distributed to board members less than 72 hours before a regular meeting must be made available to the public at the same time the writings are distributed to all, or a majority, of the board members. (Gov. Code § 54957.5(b).) To comply with this legal requirement, the board’s agenda must include the location of the board’s office where members of the public can inspect such late distributed documents. (Id.) In addition, when open session documents prepared by school district staff or by a board member are distributed during a regular meeting, the board must make the documents available for public inspection during the meeting. (Gov. Code § 54957.5(c).) This restriction does not require that the board provides every member of the public with a copy of the document, but there needs to be at least one copy of the document available for members of the public to inspect. If the writings were distributed by someone else during the meeting, such as a member of the public, the documents must be made available for public inspection immediately after the meeting. In addition, under the Public Records Act, if documents are distributed to one board member, the documents must generally be distributed to all board members, in the same manner and at the same time. (Gov. Code § 6252.7.)

Board Control of Meetings and Public Comments
The board remains in control of its meetings despite certain limitations. Under the Brown Act, boards must specify the time and place for regular meetings by ordinance, resolution, bylaws, or by whichever rule is required for the board’s conduct of business. (Gov. Code § 54954(a).) In contrast, special meetings may be called at any time, although these meetings require at least 24-hours notice. Either the presiding board member or a majority of the board members may call the special meeting by delivering written notice to each member of the board, local newspapers, and radio or television stations requesting such notice. Unlike regular board meetings, during the special meeting, only the business described in the notice may be discussed at the meeting. (Gov. Code § 54956.)

During regular public meetings, the public must be given an opportunity to address the board on any item on the agenda and on any item that is within the subject matter jurisdiction of the board. The board can place certain restrictions on the public comment period. (Gov. Code § 54954.3.) For instance, only one public comment period is required, even if a meeting carries over to a second day. The board may also place reasonable time limits on public comments in order to ensure that the meetings are concluded within a reasonable time period. (Gov. Code § 54954.3(b).) It is important, however, that these time restrictions are applied uniformly to everyone.

The right to public comment includes the public’s right to comment on closed session agenda items prior to the board going into closed session. The board must inform members of the public that they are adjourning to closed session and must state or refer to the closed session agenda items so that the public has a general understanding of the topics that will be covered in closed session. (Gov. Code § 54957.7.) The board must then permit members of the public to comment on closed session agenda items before convening into closed session.

Under the Brown Act, the board is limited in responses it can make to an item that was not on the agenda but was raised in public comment. Generally, the board may not discuss or take action on an item not included on the agenda, although there are several exceptions. (Gov. Code § 54954.2) One exception provides that board members may respond briefly to statements or questions made by members of the public during the public comment period. In response to public comments or on their own initiative, board members may make brief announcements, present a short report on the board member’s own activities, ask a question for clarification, provide a reference to staff members for factual information, or request a staff member to report back to the board on any matter at a subsequent meeting. (Id.)

The board generally cannot prevent members of the public from making disparaging remarks during the public comment period. Specifically, the board cannot prohibit public criticism of the “policies, procedures, programs, or services of the agency, or of the acts or omissions of the legislative body,” even if such criticism implicates the performance of public employees. (Gov. Code § 54954.3(c).) Members of the public have a First Amendment right to criticize public officials at board meetings. In Baca v. Moreno Valley Unified School District (1996) 936 F.Supp. 719, the court concluded that a board could not prohibit a member of the public from making defamatory comments regarding a board member during the public comment period. However, the board may always encourage speakers to be civil, to be sensitive about confidential or disparaging information, or to file a uniform complaint, rather than publicly lambasting district employees.

Dealing with Disruptions During Board Meetings
The board can take reasonable actions to prevent disruptions from occurring during its meetings. If a person or group disrupts the orderly conduct of a meeting, the board has a right to remove those individuals from the meeting. (Gov. Code § 54957.9.) If order of the meeting cannot be restored even after the removal of those individuals, the board may order the room to be cleared, excepting members of the media who are not involved in the disturbance, and may continue with the meeting. (Id.)

While the Brown Act allows filming and recording of public meetings, the board may establish reasonable controls to avoid disruption. For example, it would not be unreasonable to ask someone filming a meeting not to set up a camera or stand in such a way as to block the audience’s view, or to block an exit. If the board makes a reasonable finding concluding that such filming or recording during the meeting would cause a persistent disruption of the proceedings, then the recording or filming may be prohibited. (Gov. Code § 54953.5.) Similarly, open meetings may be broadcasted unless the board makes a reasonable finding that the broadcast would cause a persistent disruption to the meeting. (Gov. Code § 54953.6.)

Conclusion
The key to complying with the Brown Act in conducting board meetings is to treat everyone equally. Board policies and procedures should be applied uniformly and consistently. This allows for the proper balance between the public’s involvement and the efficient management of board meetings. If you have any questions regarding board meetings or issues related to the Brown Act, please feel free to contact one of our eight offices located statewide. You can also visit our website, follow us on Facebook, or download our Client News Brief App.

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

SB 1291 extends the California Training Benefits Program (“Program”), which extends through January 1, 2019, currently available unemployment benefits to unemployed individuals who participate in specified training programs. SB 1291 also provides that, effective January 1, 2014, unemployed permanent or probationary teachers who participate in K-12 math, science, or special education credential or training programs approved by the California Commission on Teacher Credentialing are automatically eligible for extended unemployment benefits under the Program.

SB 1292: Principal Evaluations

Effective January 1, 2013, SB 1292 adds Article 13 (commencing with Section 44670) to the Education Code to authorize the governing board of a school district to create and implement an evaluation process for school principals. Under SB 1292, principal evaluations are authorized for the first and second year of employment as a new principal, as well as additional evaluations thereafter as determined by the governing board. SB 1292 provides that the criteria for principal evaluations may be based upon the California Professional Standards for Educational Leaders and may include, among other things, pupil academic growth, performance of teacher evaluations, and effective school management. AB 1292 also authorizes school districts to utilize funds from Title I and II of the No Child Left Behind Act or other available state and federal funds to implement its terms.

AB 1964 expands and clarifies protections from discrimination based on religious beliefs. Current law requires employers to reasonably accommodate the religious beliefs or observances of an employee unless the accommodation would create an undue hardship on the employer. AB 1964 includes religious dress and grooming practices as a belief or observance covered by the protections against religious discrimination. AB 1964 further specifies that any accommodation of an employee’s religious dress or grooming practice that requires the employee to be segregated from the public or other employees is not a reasonable accommodation.

AB 2386 clarifies that the existing protections against sex discrimination include protections for employees who are breastfeeding or suffering medical conditions related to breastfeeding.

The statutory changes made by AB 1964 and AB 2386 are effective January 1, 2013.

If you have any questions regarding these bills or other labor and employment matters, please feel free to contact one of our eight offices located statewide. You can also visit our website, follow us on Facebook, or download our Client News Brief App.

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

Governor Brown recently signed into law Assembly Bill (AB) 1909, which expands school districts’ obligations and notice requirements with respect to meetings to determine if a foster child’s suspension should be extended pending expulsion proceedings, expulsion hearings for foster children, and meetings to conduct manifestation determinations of foster children prior to imposition of discipline. In adding these additional duties, AB 1909 amends relevant portions of the Education Code and Welfare and Institutions Code regarding discipline of foster children. Such changes will take effect on January 1, 2013.

Current law requires school districts to designate an “educational liaison” for foster children, a person affiliated with a school district’s local foster children services program, to oversee foster children within the district and facilitate placement, credit transfers, enrollment, and the foster child’s checkout from school. AB 1909 further broadens the scope of the educational liaison’s duties by requiring the liaison to notify a foster child’s attorney as well as the county child welfare agency of pending disciplinary proceedings regarding the child.

Previously, such notification was only required to be given to a foster child’s parent or guardian; however, the legislature determined that notice to additional parties is necessary to ensure foster children have persons present to advocate for them before a decision on expulsion or an extension of suspension is made. In this sense, AB 1909 requires school districts to invite a foster child’s attorney and an appropriate representative of the county child welfare agency to participate in (1) meetings to determine if a foster child’s suspension should be extended pending expulsion proceedings where the decision to recommend expulsion is discretionary, (2) expulsion hearings where the decision to expel a foster child is discretionary, and (3) meetings regarding manifestation determinations of foster youth with special needs conducted prior to imposition of discipline.

With respect to any proceeding to determine if a foster child should be expelled, AB 1909 now requires school districts to provide a foster child’s attorney and an appropriate representative of the county child welfare agency with written notice of the proceedings no later than ten (10) days prior to the hearing, rather than only providing written notice to the foster child’s parent or guardian as required by existing law.

Indeed, the scope of a school district’s responsibilities have broadened by the enactment of AB 1909; however, school districts can also take solace in the fact that foster children will now be adequately represented at early proceedings to reduce the need for subsequent hearings and appeals based on a lack of notice or factual misunderstandings.

If you have any questions regarding AB 1909, or other issues related to educational placement of foster children, please feel free to contact one of our eight offices located statewide. You can also visit our website, follow us on Facebook, or download our Client News Brief App.

Note: Based upon the deluge of student-related legislation passed this year, school districts should consider updates to their affected policies and regulations. New laws potentially impacting districts’ policies and regulations have been covered in this Client News Brief (CNB) and Lozano Smith CNB No. 22, CNB No. 42,CNB No. 45, CNB No. 52,CNB No. 53, CNB No. 57,CNB No. 58 and CNB No. 68. Such policies and regulations may include those related to student discipline, student admissions and residency requirements, student fees and charges, GATE, independent study, curriculum and instruction, and others. If you have any question regarding potential policy changes necessitated by these new laws, please feel free to contact one or our eight offices located statewide.

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

In a recent decision, the Public Employment Relations Board (PERB) affirmed its test for what it considers to be protected activity when employees are acting as union representatives.

In Service Employees International Union, Local 1000 (SEIU) v. State of California (Department of Corrections & Rehabilitation) (Department) (2012) PERB Decision No. 2282-S, PERB concluded that the Department committed an unfair labor practice when it disciplined a union representative for her allegedly “insubordinate, discourteous, unprofessional, and disrespectful” behavior while representing union members during meetings with their supervisors. The Department issued a Letter of Instruction to SEIU’s job steward following an employee meeting in which the job steward asked the employee’s supervisor to answer questions, and then gestured with her hand to indicate that the supervisor who responded was not the one to whom she was speaking. The Letter instructed the job steward to conduct herself courteously, professionally, and with respect to supervisors in the future and threatened to replace her as job steward in future employee disciplinary meetings if her improper behavior continued. The Letter also stated that a copy of the Letter would be placed in her personnel file for one year.

SEIU filed an unfair practice charge against the Department claiming that it had violated section 3519(b) of the Dills Act by punishing the job steward based on protected activities. Like the Educational Employment Relations Act (EERA), the Dills Act prohibits State employers from discriminating or retaliating against employees because of their exercise of the rights afforded by the Dills Act, including the right to participate in union activities and the right of unions to represent members in their employment relations with the state. PERB determined that the job steward’s actions on behalf of SEIU were protected, and the Department’s issuance of an adverse disciplinary letter based on the job steward’s protected activity was an unfair labor practice.

In reaching its ruling, PERB noted that union representatives are afforded significant latitude in their representational speech and conduct and must be free to speak and act for the union without interference, restraint or coercion by the employer. This right of union representatives to engage in protected activities includes occasional impulsive behavior which will be balanced against the employer’s right to maintain order and respect.

Ultimately, relying in its prior decisions, PERB affirmed that a union representative’s speech and conduct will only lose statutory protection if it is “sufficiently opprobrious, flagrant, insulting, defamatory, insubordinate, or fraught with malice as to cause substantial disruption of or material interference in the workplace.” PERB will make this assessment using an objective, not subjective, standard. Therefore, the fact that a supervisor feels personally offended by an employee’s speech or actions will be insufficient to demonstrate that the speech, taken in a representational capacity on behalf of a union member, is outside the bounds of statutory protection. Rather, a union representative’s speech will only lose its protected status if it is so disrespectful of the employer that it seriously impairs the employer’s ability to maintain discipline.

In this case, PERB concluded that the job steward’s behavior did not meet the standard for justification of discipline by the Department. PERB determined that the steward’s hand gesture signifying her request for one of the supervisors not to speak was impulsive and not so egregious as to interfere with the Department’s discipline and operations. The job steward only minimally interrupted one of the supervisors during the meeting to ask questions, and her behavior was witnessed by only three employees. PERB concluded that these actions were not sufficiently disruptive so as to lose their status as protective activity.

This decision does not limit a public employer’s ability to discipline union representatives for violating established policies, even when the violations occur during protected union activities. However, in order to avoid an unfair labor practice charge, public employers should carefully evaluate the employee’s allegedly improper behavior before pursuing discipline in light of the high degree of statutory protection afforded to employees when acting as union representatives.

If you have any questions regarding this decision or employee discipline issues in general, please feel free to contact one of our eight offices located statewide. You can also visit our website, follow us on Facebook, or download our Client News Brief App.

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.